Antitrust Challenges to Most Favored Nation and Competitor Parity Clauses in the U.S. and Europe

Assessing MFNs and Parity Provisions for Antitrust Vulnerabilities, Devising a Defensible Business Case for MFNs

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, April 28, 2016

Recorded event now available

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Program Materials

This CLE webinar will analyze recent antitrust challenges to the use of most favored nation (MFN) and competitor parity clauses by the U.S. Department of Justice (DOJ), national competition authorities and the European Commission. The panel will provide guidance on how to evaluate the antitrust risks inherent in these provisions, how to establish a defensible business case for the use of MFNs and parity clauses, and how to tailor the clauses to minimize antitrust scrutiny.

Description

MFN and competitor parity provisions have recently faced regulatory challenges in both the U.S. and Europe. These challenges, brought by competition authorities in EU Member States and by the European Commission against online travel agencies and Amazon and brought by the DOJ against American Express, were made despite the lack of market power by the benefiting parties and no harm to consumers.

Do these challenges mean that MFNs and parity provisions are unlawful in all circumstances? Or, do the circumstances in which parity provisions are used create particular antitrust exposure? Can MFNs and competitor parity provisions still be used when there is a defensible business case for them? How can the clauses be tailored so that they withstand antitrust scrutiny?

Listen as our authoritative panel provides practical thinking on the use or contemplated use of MFNs and competitor parity provisions in the U.S. and Europe. The panel will highlight factors that might create antitrust concern and identify techniques that could help counsel and clients avoid problems.

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Outline

  1. What is an MFN/competitor parity clause?
  2. Latest legal developments regarding the use of MFN and competitor parity clauses
  3. Circumstances under which MFN and competitor parity clauses may face heightened antitrust risk
  4. Defensible business case for an MFN
  5. Tailored use of MFNs

Benefits

The panel will review these and other key issues:

  • What were the circumstances behind the recent regulatory challenges to MFN and competitor parity provisions in the U.S. and Europe?
  • Are there particular characteristics of some industries or market structures that make MFN and parity provisions more or less of a problem?
  • Do some companies face greater risks than others in using MFN and parity provisions?
  • How can companies demonstrate a defensible business case for MFN and parity provisions?

Faculty

Justin Coombs
Justin Coombs

Executive Vice President
Compass Lexecon

Mr. Coombs has more than 25 years of experience as an applied economist specializing in competition policy and economic...  |  Read More

Rinne, Alexander
Dr. Alexander Rinne

Partner
Milbank Tweed Hadley & McCloy

Dr. Rinne focuses on both German and European competition law, including related regulatory areas such as...  |  Read More

Schaeffer, Fiona
Fiona A. Schaeffer

Partner
Milbank Tweed Hadley & McCloy

Ms. Schaeffer is an international antitrust lawyer with over 20 years of experience practicing on both sides of the...  |  Read More

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