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 Wednesday, October 11, 2017

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 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.

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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 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

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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