Mitigating Antitrust Risk in Most Favored Nation, Non-Discrimination and Anti-Steering Contract Provisions

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

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Conducted on Thursday, August 29, 2013

Recorded event now available

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Course Materials

This CLE course will focus on the practical implications of contracts that reference rivals and have most favored nation clauses (MFNs), non-discrimination clauses, and/or anti-steering provisions. The panel will identify what will trigger heightened antitrust scrutiny and provide practical tips for defensible use of MFNs.

Description

Two recent high profile cases challenged the use of contractual MFNs. Further, DOJ policymakers are now scrutinizing a wide variety of contracts that reference rivals for potential antitrust violations, particularly when used by firms with market power.

Private suits and suits by state attorneys general have followed the government challenges, leading to large settlements in some instances and creating further exposure for defendants in the government cases.

Do these actions mean that MFNs and similar provisions are unlawful in all circumstances? Or, did the circumstances in which these MFNs were used create particular antitrust exposure? Can MFNs still be used without a heightened risk of antitrust challenge?

Listen as our panel of antitrust attorneys provides practical thinking on the use or contemplated use of MFNs or similar terms and conditions. The panel will highlight factors that might create greater antitrust concern and identify techniques that could help avoid problems.

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Outline

  1. What are the cases and policies giving rise to concern over MFNs?
    1. United States v. Apple Inc., et al.
    2. United States and state of Michigan v. Blue Cross Blue Shield of Michigan
    3. Private and state cases
    4. Policy speeches
  2. What is an “MFN”?
    1. The general category of contracts referencing rivals
    2. MFN Plus clauses
    3. Similar clauses and practices — non-discrimination clauses; anti-steering provisions
    4. Do differences in the clauses matter?
  3. What circumstances suggest heightened antitrust risk?
    1. Dominant firms
    2. Collective action and broad industry coverage
    3. Barriers to entry
  4. When might an MFN not raise an antitrust objection
    1. A defensible business case for an MFN
    2. Tailored use of MFNs

Benefits

The panel will review these and other key questions:

  • Are there particular characteristics of some industries that make MFNs more or less of a problem?
  • Do some companies face greater risks than others in using MFNs?
  • Can a company approach the negotiation or use of an MFN in any particular way to limit their exposure?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Faculty

Allison F. Sheedy
Allison F. Sheedy
Atty
Constantine Cannon

Ms. Sheedy's practice focuses on civil antitrust litigation, government antitrust investigations involving...  |  Read More

Ronald Drennan
Ronald Drennan
Chief
U.S. Department of Justice

He has a Ph.D. in economics from Rutgers University and started working at the US Department of Justice Antitrust...  |  Read More

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