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

A live 90-minute CLE webinar with interactive Q&A


Wednesday, October 11, 2017
1:00pm-2:30pm EDT, 10:00am-11:30am PDT


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 concerns.

Description

MFN and competitor parity provisions have faced regulatory challenges in both the U.S. and Europe. High profile challenges include those brought by competition authorities in the EU against online travel agencies and Amazon and by the US DOJ against Apple and American Express.

However, MFNs and parity provisions are not always unlawful. A number of factors can increase (or reduce) the antitrust risks associated with MFN/parity provision. The market position of the parties and the effect of the provision are both critical factors.

Can MFNs and competitor parity provisions still be used when the parties can demonstrate efficiencies or other legitimate business reasons for using them? How can the clauses be tailored to withstand antitrust scrutiny?

Listen as our authoritative panel provides first hand experience and practical guidance on the 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.

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 create antitrust risk
  4. Criteria to justify an MFN
  5. Tailored use of MFNs

Benefits

The panel will review these and other key issues:

  • What were the circumstances behind the previous 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 an antitrust problem?
  • Do some companies face greater risks than others in using MFN and parity provisions?
  • How can companies tailor and justify MFN and parity provisions?

Faculty

Dr. Alexander Rinne, Partner
Milbank Tweed Hadley & McCloy, Munich

Dr. Rinne focuses on both German and European competition law, including related regulatory areas such as telecommunications, broadcasting and recycling. He specializes in merger control procedures as well as cartel investigations and dominance cases before the relevant antitrust authorities. He also has extensive expertise in antitrust litigation before German and European courts where he represents clients particularly in the context of antitrust damages cases, refusal to supply actions and cases in relation to merger control decisions.

Fiona A. Schaeffer, Partner
Milbank Tweed Hadley & McCloy, New York

Ms. Schaeffer is an international antitrust lawyer with over 20 years of experience practicing on both sides of the Atlantic. She counsels clients in a variety of industries, with a particular depth of experience in healthcare, financial services, energy, media and communications. Clients entrust Ms. Schaeffer with the defense of “bet the company” criminal and civil cases as well as their most complex transactions.


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Antitrust Law Advisory Board

Clifford H. Aronson

Partner

Skadden Arps Slate Meagher & Flom

W. Joseph Bruckner

Partner

Lockridge Grindal Nauen

Gregory J. Casas

Shareholder

Greenberg Traurig

David B. Goroff

Partner

Foley & Lardner

Allen P. Grunes

Co-Founder and Attorney

The Konkurrenz Group

Robert N. Kaplan

Partner

Kaplan Fox & Kilsheimer

Christopher J. Kelly

Partner

Mayer Brown

James J. Long

Shareholder

Briggs and Morgan

Milton Marquis

Shareholder

Cozen O'Connor

Janet L. McDavid

Partner

Hogan Lovells

Kevin D. McDonald

Partner

Jones Day

Daniel F. McInnis

Partner

Thompson Hine

Saul P. Morgenstern

Partner

Kaye Scholer

Douglas Rosenthal

Partner

Constantine | Cannon

M. Sean Royall

Partner

Gibson Dunn & Crutcher

Joseph J. Tabacco, Jr.

Partner

Berman DeValerio

Douglas M. Tween

Partner

Linklaters

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