Case 2:21-cv-00693-RSM Document 20 Filed 07/21/21 Page 1 of 63
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`THE HONORABLE RICARDO S. MARTINEZ
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`ELIZABETH DE COSTER, MAYA GOLD,
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`JOHN MARIANE, OSAHON OJEAGA,
`No. 2:21-cv-00693-RSM
`MEGAN SMITH, ROBERT TAYLOR,
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`KENNETH DAVID WEST, and EMMA
`CONSOLIDATED AMENDED
`ZABALLOS, on behalf of themselves and all
`COMPLAINT
`others similarly situated,
`
`DEMAND FOR JURY TRIAL
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`
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`Plaintiffs,
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`Defendant.
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`vs.
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`AMAZON.COM, INC., a Delaware
`corporation,
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`CONSOLIDATED AMENDED COMPLAINT
`Case No. 2:21-CV-00693-RSM
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`Case 2:21-cv-00693-RSM Document 20 Filed 07/21/21 Page 2 of 63
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`III.
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`IV.
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`INTRODUCTION ............................................................................................................ 1
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`JURISDICTION ............................................................................................................. 11
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`VENUE ........................................................................................................................... 12
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`PARTIES ........................................................................................................................ 12
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`A.
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`B.
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`Plaintiffs .............................................................................................................. 12
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`Defendant ............................................................................................................ 13
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`V.
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`STATEMENT OF FACTS ............................................................................................. 13
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`A.
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`Amazon Is the Gatekeeper for Retail Ecommerce. ............................................. 13
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`1. Amazon’s marketplace both creates and benefits from strong
`network effects. .............................................................................................15
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`a. Amazon retains the vast majority of its customer base through
`Prime membership, which creates high switching costs. ......................16
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`b. Amazon uses Prime to pressure third-party merchants to enroll in
`Amazon’s fee-based shipping service, which allows Amazon to
`extract an even greater share of each transaction. .................................17
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`2. Having firmly established itself as the gateway to online sales,
`Amazon today extracts supra-competitive fees and prices from
`sales on its marketplace. ...............................................................................18
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`B.
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`Amazon Has Monopoly Power in the Market for U.S. Online
`Retail Marketplaces and the Broader Market for U.S. Online Retail
`Sales. ................................................................................................................... 20
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`1. The Online Retail Marketplace Market does not include brick
`and mortar retailers or single-merchant online sites. ....................................20
`2. Amazon dominates the Online Retail Marketplace Market. .........................23
`3. Amazon’s control over the Online Retail Marketplace Market
`has given it market power in the broader Online Retail Sales Market,
`which is a distinct market from brick-and-mortal retail sites. ......................28
`
`C.
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`Amazon Harms Competition by Imposing Most Favored Nation
`Requirements on Third-Party Merchants. ........................................................... 33
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`CONSOLIDATED AMENDED COMPLAINT - i
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`D.
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`Government Authorities Have Repeatedly Concluded That
`Amazon Has Harmed Competition Through the Use of Most
`Favored Nation Pricing Policies. ........................................................................ 42
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`VI.
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`INTERSTATE TRADE AND COMMERCE ................................................................ 47
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`VII. CLASS ACTION ALLEGATIONS ............................................................................... 47
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`VIII. ANTITRUST INJURY AND STANDING .................................................................... 50
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`IX.
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`CAUSES OF ACTION ................................................................................................... 50
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`First Cause of Action Violation of the Sherman Act (15 U.S.C. § 1) Per Se ................50
`Second Cause of Action Violation of 15 U.S.C. § 1 (Alternative to Per Se) ................51
`Third Cause of Action Violation of the Sherman Act – Monopolization
`(15 U.S.C. § 2) ................................................................................................................54
`Fourth Cause of Action Violation of the Sherman Act – Attempted
`Monopolization (15 U.S.C. § 2)......................................................................................55
`JURY TRIAL DEMANDED .......................................................................................... 56
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`PRAYER FOR RELIEF ................................................................................................. 56
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`X.
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`XI.
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`CONSOLIDATED AMENDED COMPLAINT - ii
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`Plaintiffs allege the following on personal knowledge with respect to themselves and
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`their acts, and on information and belief with respect to all other matters based on the
`investigation made by their attorneys.
`
`I.
`INTRODUCTION
`1.
`Amazon operates the largest online retail marketplace in the United States, which
`includes its website, applications for mobile devices, and voice-controlled devices that allow
`consumers to make purchases from Amazon (“Amazon’s marketplace”).
`2.
`Amazon directly sells a wide range of consumer goods—approximately 12
`million goods—to customers on its marketplace.1
`3.
`Amazon also designed its marketplace to be a platform where other businesses
`(“third-party merchants”) can register and list their goods for Amazon to sell. In that sense,
`Amazon’s marketplace is like “an online mall where independent merchants display their
`products to people perusing the website,” according to Amazon’s Vice President of Marketplace
`Business.2 Amazon presents its marketplace “as a single integrated platform that makes no”
`significant “distinction between Amazon’s own retail business and the Marketplace business.”3
`Third-party merchants “post their products on the platform,” which Amazon presents to users
`together with its own goods “according to a certain algorithm that takes the form of a ranking
`list.”4
`
`4.
`Sales on Amazon’s marketplace make up between 65% and 70% of all online
`marketplace sales in the United States and account for over 50% of all online retail sales
`
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`1 How Many Products Does Amazon Carry?, 360PI (May 2016), https://0ca36445185fb449d582-
`f6ffa6baf5dd4144ff990b4132ba0c4d.ssl.cf1.rackcdn.com/IG_360piAmazon_9.13.16.pdf; Amazon Store Directory,
`AMAZON.COM, https://www.amazon.com/gp/site-directory?ref_=nav_em_T1_0_2_2_36__fullstore (last visited July
`21, 2021).
`2 Declaration of Nicholas Denissen, Amazon’s Vice President of Marketplace Business (June 30, 2017)
`(“Denissen Decl.”) at ¶ 5, Oberdorf v. Amazon.com, Inc., No. 16-cv-1127MWB (M.D. Pa.), Dkt. No. 31.
`3 Amazon Removes Price Parity Obligation for Retailers on Its Marketplace Platform, BUNDESKARTELLAMT
`(Federal Cartel Office of Germany), at 2 (Dec. 9, 2013) (“BKartA Decision”),
`http://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Fallberichte/Kartellverbot/2013/B6-46-
`12.pdf%3F__blob%3DpublicationFile%26v%3D2.
`4 Id.
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`revenue in the United States.5 By comparison, Amazon’s two closest competitors, eBay and
`Walmart, account for only 6.1% and 4.6%, respectively, of that revenue.6
`5.
`Many third-party merchants listing their goods on Amazon’s marketplace also
`sell their goods on other platforms—including on their own websites and on competing online
`marketplaces, such as those offered by eBay and Walmart.7 Amazon nonetheless dwarfs all
`competing marketplaces in its breadth of product offerings and the number of competing third-
`party merchants: Amazon hosts 2.3 million active third-party merchants, about 45 times more
`than the 52,000 third-party sellers that Walmart hosts on its competing marketplace.8
`6.
`Amazon therefore competes both (a) as a retailer, including against the third-
`party merchants that list their goods on Amazon’s marketplace and (b) as a marketplace,
`including against other online retail marketplaces, such as eBay and Walmart, where third-party
`merchants can likewise list their goods.
`7.
`Amazon’s marketplace is a “must have” for third-party merchants. Almost half
`of the third-party merchants who list their goods on Amazon’s marketplace generate between
`81% and 100% of their revenues on it, according to a 2018 survey. 9 And, on Amazon’s
`marketplace, third-party merchants have access to 147 million of Amazon’s most loyal
`customers: its Prime members,10 96% of whom are more likely to buy goods from Amazon’s
`
`
`5 SUBCOMMITTEE ON ANTITRUST, COMMERCIAL, AND ADMINISTRATIVE LAW OF THE COMMITTEE ON THE
`JUDICIARY, 116th CONG., INVESTIGATION OF COMPETITION IN DIGITAL MARKETS, MAJORITY STAFF REPORT AND
`RECOMMENDATIONS (“House Report”) 255 (2020), available at https://kl.link/3jGISfK.
`6 Marianne Wilson, eMarketer: Amazon to Capture 47% of All U.S. Online Sales in 2019, CHAIN STORE AGE
`(Feb. 15, 2019), https://chainstoreage.com/technology/emarketer-amazon-to-capture-47-of-all-u-s-online-sales-in-
`2019.
`7 As used throughout this Complaint, “marketplace” refers to online sites (such as those of Amazon and eBay)
`that allow third-party sellers to list their goods, as opposed to single-merchant websites (like Nordstrom’s) that do
`not.
`8 House Report at 249.
`9 J. Clement, Percentage of E-commerce Revenue from Amazon Sales According to Amazon Marketplace
`Sellers in 2018, STATISTA (May 4, 2019), https://www.statista.com/statistics/259782/third-party-seller-share-of-
`amazon-platform/.
`10 As described in more detail in this complaint, Prime members are Amazon customers who pay annual fees to
`obtain free shipping on many goods sold in Amazon’s marketplace and other benefits.
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`marketplace than any other online retail marketplace.11 As one third-party merchant put it:
`“[W]e have nowhere else to go and Amazon knows it.”12
`8.
`Amazon uses its market power in the market for online retail marketplaces to
`impose significant fees on customers and on third-party merchants for the use of its
`marketplace. To secure the right to list their goods on Amazon’s marketplace, third-party
`merchants must first choose one of two selling plans: a flat monthly fee of $39.99 or a per-sale
`fee of $0.99.13 And when an Amazon customer buys an item listed by a third-party merchant,
`Amazon retains a significant percentage of the customer’s payment as a “referral fee” for the
`use of Amazon’s marketplace.14 After deducting that and other fees, Amazon remits the
`remainder to the third-party merchant. Altogether, roughly 27% of every dollar an Amazon
`customer pays to Amazon when making purchases on its marketplace goes to Amazon.15
`9.
`Rival marketplaces (like eBay) impose significantly lower fees on third-party
`sellers. For example, for a book listed at $30, Amazon takes 23% in total fees, whereas eBay
`takes 16%. And for a DVD listed at $15, Amazon takes 31% in total fees, whereas eBay takes
`
`
`11 Kiri Masters, 89% of Consumers Are More Likely to Buy Products from Amazon than Other E-Commerce
`Sites: Study, FORBES (Mar. 20, 2019), https://www.forbes.com/sites/kirimasters/2019/03/20/study-89-of-consumers-
`are-more-likely-to-buy-products-from-amazon-than-other-e-commerce-sites/#452623b04af1.
`12 Molson Hart, How Amazon’s Business Practices Harm American Consumers: Why Amazon Needs a
`Competitor and Why Walmart Ain’t It, MEDIUM (July 18, 2019), https://medium.com/swlh/amazon-needs-a-
`competitor-and-walmart-aint-it-5997977b77b2.
`13 Pricing: Let’s Talk Numbers, AMAZON.COM, https://sell.amazon.com/pricing.html (last visited July 21,
`2021).
`14 Id.
`15 Karen Weise, Prime Power: How Amazon Squeezes the Businesses Behind Its Store, N.Y. TIMES (Dec. 19,
`2019), https://www.nytimes.com/2019/12/19/technology/amazon-sellers.html.
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`21%.
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`10.
`Similarly, other online retail platforms impose lower fees than Amazon—or no
`fees at all. For example, third-party merchants selling goods directly to consumers on their own
`websites pay no fees for those sales.
`11.
`To account for Amazon’s inflated fees, third-party merchants must inflate the
`total prices at which they list goods on Amazon’s marketplace. And, as a result, the consumer
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`plaintiffs bringing this lawsuit, and the putative class they seek to represent, pay supra-
`competitive prices directly to Amazon that reflect Amazon’s supra-competitive fees.
`12.
`In a competitive market, rival marketplaces would be able to compete on price
`against Amazon’s inflated fees. And both third-party merchants and Amazon customers would
`derive economic benefits from online platforms with lower fees. Third-party merchants would
`receive a higher percentage of their list prices and therefore be able to reduce their list prices,
`resulting in significant savings for consumers on those competing marketplaces. This
`competitive pressure would, in turn, compel Amazon to lower its fees, which would result in
`third-party merchants’ listing goods at lower prices on Amazon. Finally, to continue competing
`as a retailer against those now-cheaper third-party goods on its marketplace, Amazon would
`have to lower the prices of the goods it sells as a first-party merchant on its marketplace.
`Customers on Amazon would therefore benefit from lower, competitive prices and fees for all
`goods listed on Amazon’s marketplace.
`13.
`Amazon, however, bars this type of competition, denying Amazon customers—
`the class that Plaintiffs seek to represent—the benefits of lower prices and fees. It does so by
`imposing on third-party merchants Platform “Most Favored Nation” (“MFN”) policies.
`Amazon’s MFN policies forbid third-party merchants from listing their goods anywhere else on
`the internet at prices lower than their Amazon list prices. This is a clear restriction on price
`competition that harms every class member.
`14.
`Economic literature has widely recognized that MFN policies often harm
`competition when employed by a platform with market power.16 And that rings true here. An
`investigation by the House of Representatives Judiciary Committee’s Subcommittee on
`
`16 See, e.g., Jonathan B. Baker & Fiona Scott Morton, Antitrust Enforcement Against Platform MFNs, 127 YALE
`L.J. 2177 (2018), https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=9302&context=ylj; OECD
`DIRECTORATE FIN. & ENTER. AFF’S COMPETITION COMM., SUMMARY RECORD: ANNEX TO THE SUMMARY RECORD
`OF THE 124TH MEETING OF THE COMPETITION COMMITTEE HELD ON 27-28 OCTOBER 2015 (2015),
`https://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DAF/COMP/M(2015)2/ANN2/FINAL&
`doclanguage=en; Benjamin Edelman & Julian Wright, Price Restrictions in Multi-sided Platforms: Practices and
`Responses, 10 COMPETITION POL’Y INT’L 86 (2014); Andre Boik & Kenneth S. Corts, The Effects of Platform Most-
`Favored-Nation Clauses on Competition and Entry, 59 J.L. & ECON. 105, 113–29 (2016).
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`CONSOLIDATED AMENDED COMPLAINT - 5
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`Antitrust, Commercial, and Administrative Law (the “House subcommittee on antitrust”) found
`that “Amazon has a history of using MFN clauses to ensure that none of its suppliers or third-
`party sellers can collaborate with an existing or potential competitor to make lower-priced or
`innovative product offerings available to consumers.”17
`15.
`Amazon imposes its MFN policies on third-party merchants through the Amazon
`Business Solutions Agreement (BSA). Every third-party merchant that registers to list goods on
`Amazon’s marketplace must “agree[] to the terms of the [BSA] and the policies incorporated in
`that agreement.”18
`16.
`Until March 2019, Amazon enforced its MFN policies through BSA’s “Price
`Parity Clause,”19 which expressly prohibited third-party merchants from listing goods on other
`online retail platforms—whether marketplaces or single-merchant websites—at prices lower
`than their Amazon list prices. This version of Amazon’s MFN policies, introduced in 2012,
`quickly drew international scrutiny from antitrust regulators. In particular, regulators in the U.K.
`and Germany concurrently launched investigations into the anticompetitive effects of Amazon’s
`MFN Price Parity Clause. The German authority ultimately concluded that Amazon’s MFN
`policies had anticompetitive effects stemming from restraints on competition between both
`(1) Amazon and third-party merchants listing goods on Amazon’s marketplace, and (2) Amazon
`and other online retail marketplaces.
`17.
`Specifically, the German authority “found that the [Amazon] Marketplace
`constitutes a horizontal trade cooperation between Amazon and third-party sellers that has as its
`object and effect various restrictions of competition” and that the “horizonal price-fixing”
`
`17 House Report at 295.
`18 Declaration of Ella Irwin, Director of Marketplace Abuse at Amazon (July 13, 2018) (“Irwin Decl.”) at ¶ 4,
`Kangaroo Mfg., Inc. v. Amazon.com, No. 17-cv-1806SPL (D. Ariz.), Dkt. No. 75. Amazon also has a limited
`number of stand-alone agreements with certain third-party merchants, who are not subject to the Standard Business
`Agreement. For example, Amazon has a separate agreement with certain publishers to sell their eBooks directly to
`customers on Amazon’s marketplace. See Laura Owen, Macmillan, too, Returns to Agency Pricing with Amazon,
`GIGAOM (Dec. 18, 2014), https://gigaom.com/2014/12/18/macmillan-too-returns-to-agency-pricing-with-amazon/.
`Amazon’s anticompetitive agreements with these eBooks publishers are the subject of a separate class action. See
`Fremgen v. Amazon.com, Inc., No. 1:21-cv-351-GHW-DCF (S.D.N.Y. filed Jan. 14, 2021).
`19 Irwin Decl., Ex. A at 14 (definition) and 18 (section S-4 Parity with Your Sales Channel).
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`agreement “resulted in significant price increases in e-commerce.”20 It further concluded that the
`“price parity clause is a hardcore restriction which is not indispensable for Marketplace
`efficiencies and [in violation of German and European competition laws] does not allow
`consumers a fair share of the resulting benefit.”21 Furthermore, the German authority found that
`Amazon’s Price Parity Clauses “act as barriers to market entry for new competitors and hinder
`the expansion of existing competitors in the market” by “neutrali[zing]” the “major competitive
`parameter—the fees for platform services,” such that “more favourable fees cannot be translated
`into more favourable prices for final customers.”22 Unsurprisingly, “[a]ccording to a poll of
`2,500 online retailers carried out by the [German authority, the Price Parity Clause] has also
`resulted in significant price increases in e-commerce.”23 In late 2013, because of proceedings by
`German and U.K. antitrust regulators, Amazon voluntarily “abandoned its price parity clauses
`on an EU-wide basis.”24
`18.
`Despite those international rulings and the recognition by multiple regulators of
`the anticompetitive nature of Amazon’s Price Parity Clause, Amazon continued to enforce that
`clause in the United States for six more years, until March 2019. Then, under threat of an
`investigation by the Federal Trade Commission (FTC), Amazon finally withdrew its Price Parity
`Clause in the United States.
`19.
`But that withdrawal was nominal. Amazon continues to enforce MFN policies,
`now under the guise of its so-called “Fair Pricing” Policy. That policy is also in the BSA and so
`third-party merchants must agree to adhere to it when they register to list goods on Amazon’s
`marketplace.
`20.
`The “Fair Pricing” Policy states that, if a third-party merchant engages in pricing
`practices with regard to “a marketplace offer that harms customer trust,” Amazon may impose
`
`
`20 BKartA Decision at 2-3.
`21 Id. at 2 (legal citations omitted).
`22 Id. at 3.
`23 Id.
`24 Id. at 3.
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`sanctions.25 According to the policy, a third-party merchant commits a “pricing practice that
`harms customer trust” if that merchant lists goods on a competing online retail platform at prices
`that are significantly below its Amazon list prices.26 Amazon’s sanctions for a third-party
`merchant’s daring to offer consumers lower prices elsewhere include making the merchant’s
`product ineligible for a feature (the “Buy Box” button) that would make the product the most
`visible and easiest to purchase among similar goods; removing the third-party merchant’s goods
`from Amazon’s marketplace; suspending shipping options for the merchant’s goods; and
`terminating or suspending the merchant’s ability to have any goods sold on Amazon’s
`marketplace.27
`21.
`Amazon uses the sanctions under its “Fair Pricing” Policy “as a way to penalize
`sellers that offer products at a lower price on competing sites.”28 For example, the suspension of
`a third-party merchant’s account has “dire consequences for the seller” and was cited by the
`Congressional Investigation as an “egregious example[]” of Amazon’s bullying of third-party
`merchants.29 And the elimination of the “Buy Box” button from the third-party merchant’s
`listing is devastating to the merchant’s business because over 80% of all third-party-merchant
`sales on Amazon’s marketplace are made with the “Buy Box.”30 In fact, most buyers searching
`for a product on Amazon’s marketplace will see a third-party merchant’s product only if it has
`
`
`25 Amazon Seller Central, Amazon Marketplace Fair Pricing Policy,
`https://sellercentral.amazon.com/gp/help/external/G5TUVJKZHUVMN77V?language=
`en_US&ref=efph_G5TUVJKZHUVMN77V_cont_521.
`26 Id. (stating that “[s]etting a price on a product or service [on Amazon] that is significantly higher than recent
`prices offered on or off Amazon” violates the “Fair Pricing” Policy). This is an MFN policy because the third-party
`merchant is out of compliance with Amazon’s policy if it competes with Amazon’s platform by setting prices on
`competing platforms at a price lower than the price it sets on Amazon).
`27 Id.
`28 House Report at 296.
`29 Id. at 270.
`30 Conor Bond, Why You Need the Amazon Buy Box and How to Get It, WORDSTREAM (Aug. 27, 2019),
`https://www.wordstream.com/blog/ws/2018/10/03/amazon-buy-box.
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`the Buy Box. By forcing third-party merchants that violate the “Fair Pricing” Policy to sell their
`goods without the Buy Box, Amazon puts them at a significant competitive disadvantage.31
`22.
`The intent and effect of the “Fair Pricing” Policy are the same as those of the
`former Price Parity Clause. Both the Price Parity Clause and the “Fair Pricing” Policy amount to
`MFN policies that bar third-party merchants from listing their goods at lower prices on other
`platforms, including other marketplaces and their own websites. Those policies have two major
`anticompetitive effects.
`23.
`First, Amazon’s MFN policies prohibit third-party merchants from lowering
`their prices anywhere on the internet.32 Amazon has thereby insulated itself from horizontal
`price competition for the goods it sells as a retailer on its marketplace, allowing it to maintain
`supra-competitive prices for its goods. As the German authority found in its investigation of
`Amazon’s marketplace, the point of Amazon’s MFN policies is to safeguard its significant
`market share of retail sales as a first-party merchant against competition by third-party
`merchants. Specifically, the German authority concluded that Amazon’s Price Parity Clause
`“cannot be seen” as “an indispensable restriction” on its third-party merchants, but rather, as a
`restriction to protect “Amazon’s large own-account [i.e., first-party] share of sales as a
`competitor.”33 But for Amazon’s MFN policies, third-party merchants would list their goods at
`lower prices on other platforms that charged lower (or no) fees,34 and—facing price competition
`from third-party merchants—Amazon would also have to lower prices for its own goods to
`compete with the lower-priced, third-party-merchant goods.
`24.
`Second, the MFN policies neutralize competition by other online retail
`marketplaces (like eBay) based on fees, allowing Amazon to continue to charge supra-
`
`31 Spencer Soper, Amazon Squeezes Sellers That Offer Better Prices on Walmart, BLOOMBERG (Aug. 5, 2019)
`https://www.bloomberg.com/news/articles/2019-08-05/amazon-is-squeezing-sellers-that-offer-better-prices-on-
`walmart.
`32 In its 2013 report on Amazon’s marketplace rules in Germany, BKartA determined that Amazon’s price
`parity clause was a “hardcore restriction” on the third-party merchants’ competition “in all product categories” sold
`in Amazon’s marketplace. A “poll of 2,500 online retailers” conducted by BKartA further demonstrated that the
`price parity clause caused “significant price increases in e-commerce.” BKartA Decision at 3.
`33 Id.
`34 Supra Hart.
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`CONSOLIDATED AMENDED COMPLAINT - 9
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`competitive fees for the use of its marketplace. That is because third-party merchants
`incorporate fees into their list prices. Normally, competing marketplaces therefore would have
`an incentive to lower fees so that third-party merchants would post lower list prices and thereby
`attract more customers. But Amazon’s MFN policies prohibit lower list prices on competing
`marketplaces and therefore eliminate that essential price competition. Competing marketplaces
`cannot expand to attract more business—and new marketplaces cannot enter the market to
`compete—by lowering fees and prices. This is consistent with the Germany authority’s findings:
`It concluded that Amazon’s Price Parity Clause had a direct anticompetitive “effect on
`[competing] Internet marketplace operators.”35 The “major competitive parameter—the fees for
`platform services—[was] neutralised by the price parity clause, since more favourable fees
`[could] not be translated into more favourable prices for final customers.”36 Amazon’s Price
`Parity Clause therefore created a “barrier[] to market entry for new competitors and hinder[ed]
`the expansion of existing competitors in the [online retail marketplace] market,” preventing
`competing marketplaces “from establishing a greater reach.”37
`25.
`Amazon’s MFN policies act both as a restraint on the prices of third-party-
`merchant goods to protect the supra-competitive prices of Amazon’s retail goods, and also as a
`restraint on the fees of competing marketplaces to protect the supra-competitive fees of
`Amazon’s own marketplace. Amazon’s MFN policies therefore cause Amazon customers to pay
`more for goods purchased on its marketplace than they would pay in a competitive market.
`Amazon’s conduct has resulted in supra-competitive prices for all goods offered on Amazon’s
`marketplace: those of third-party merchants and those of Amazon—prices that could not be
`maintained in the absence of Amazon’s illegal MFN policies.
`26.
`Amazon’s MFN policies are not mere policies on paper. Amazon regularly and
`aggressively enforces those policies. For example, Amazon systematically monitors the prices
`listed by third-party merchants on other online retail platforms, routinely using computer
`
`35 BKartA Decision at 3.
`36 Id.
`37 Id.
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`software to scan their price listings on other platforms and ensure that they are not listing their
`goods at lower prices on those platforms.
`27.
`Though Amazon’s MFN policies are burdensome, third-party merchants cannot
`afford to disobey them because Amazon has massive and durable market power, as discussed
`above. And, as the House subcommittee on antitrust found, Amazon’s “market power is at its
`height in its dealings with third-party sellers”38; they feel “forced to be on Amazon” and believe
`that they “don’t have a choice but to sell through Amazon.”39 In other words, in their view, it is
`a “must have” marketplace. And Amazon’s customers have no incentive to flee Amazon
`because they typically cannot find better prices on rival marketplaces, even when those
`marketplaces’ lower fees would suggest that their prices would be lower.
`28.
`As a result of the above, Amazon’s MFN policies harm competition and cause
`consumers to pay higher prices than they would in a competitive market (1) for goods listed by
`third-party merchants on Amazon’s marketplace; (2) for goods listed by third-party