FTC and Department of Justice to Hold Workshop on "Most-Favored-Nation" Clauses

Provisions Can Present Competitive Concerns Under Certain Circumstances

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The Federal Trade Commission and the Department of Justice announced today that they will hold a joint public workshop on most-favored-nation clauses (MFNs) on Sept.10, 2012, to explore the use of MFN clauses and the implications for antitrust enforcement and policy. 

The most commonly used MFN provisions guarantee a customer that it will receive prices that are at least as favorable as those provided to other buyers of the same seller, for the same products or services.  Although at times employed for benign purposes, MFNs can under certain circumstances present competitive concerns.  This is because they may, especially when used by a dominant buyer of intermediate goods, raise other buyers’ costs or foreclose would-be competitors from accessing the market.  Additionally, MFNs can facilitate collusion and stabilize coordinated pricing among sellers.

The workshop will offer an opportunity for businesses, academics, economists, lawyers and other interested parties to consider the use of MFNs and the legal and economic analyses of these provisions.  The workshop will consist of a series of panels examining, among other topics, the legal treatment of MFNs, economic theories concerning MFNs and why they are used, and industry experiences with MFNs. Panelists for the workshop will include private attorneys, economists, and industry representatives.

The FTC and the Department of Justice are interested in receiving comments on MFNs, and will accept written submissions from the public before the workshop and until Oct. 10, 2012, 30 days after the event.  Interested parties may submit public comments by e-mail.  Submitted comments will be made publicly available on the Department of Justice and FTC websites.

The all-day workshop is free and open to the public.  Individuals are encouraged, but not required, to register in advance for the workshop by e-mail.  Please include “RSVP” in the subject line.  Seating will be on a first-come, first-served basis. 

The workshop will take place at the FTC's satellite conference center at 601 New Jersey Ave., NW, Washington, DC from 9:00 a.m. to 5:30 p.m. ET on Sept. 10, 2012.  It will include the following panels and presentations:

Economic Theories of MFNs: Harms and Efficiencies

Presenters
Jonathan Baker, Professor of Law, American University Washington College of Law
Judith A. Chevalier, William S. Beinecke Professor of Finance and Economics, Yale    School of Management

Moderators
Daniel O’Brien, Senior Economic Policy Advisor, Federal Trade Commission
Robert Majure, Economics Director of Enforcement, Antitrust Division, U.S.    Department of Justice

Empirical Evidence on Effects of MFNs

Presenter
Ramsey Shehadah, Senior Vice President, NERA Consulting

Panel 
Jonathan Baker, Professor of Law, American University Washington College of Law
Judith A. Chevalier, William S. Beinecke Professor of Finance and Economics, Yale    School of Management
Ramsey Shehadah, Senior Vice President, NERA Economic Consulting

Moderators
Daniel O’Brien, Senior Economic Policy Advisor,  Federal Trade Commission
Robert Majure, Economics Director of Enforcement, Antitrust Division, U.S.    Department of Justice

Legal Treatment of MFNs

Panel
Doug Anderson, Of Counsel, Bailey Cavalieri LLC
Andrew I. Gavil, Incoming Director, Office of Policy Planning, Federal Trade    Commission
Elai Katz, Partner, Cahill, Gordon & Reindel LLP
Janet L. McDavid, Partner, Hogan Lovells

Moderator
Peter J. Levitas, Deputy Director, Bureau of Competition, Federal Trade    Commission

Lunchtime SpeechNelson Jung, Director, Markets and Projects, U.K. Office of Fair Trading

MFNs: From Theory to the Real World

Panel
W. Thomas McGough Jr., Senior Vice President & Chief Legal Officer, University of    Pittsburgh Medical Center
Melissa A. Scanlan, Director, Legal Affairs, T-Mobile USA, Inc
John Thorne, Partner, Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC
Mark D. Whitener, Senior Counsel, General Electric Co.
Murray N. Ross, Ph.D., Vice President & Director, Institute of Health Policy, Kaiser    Permanente

Moderator
Martha S. Samuelson, President & CEO, Analysis Group Inc.

Moving Forward – How Has Thinking about MFNs Evolved and Where Might It Go?

Panel
David I. Gelfand, Partner, Cleary, Gottlieb, Steen & Hamilton LLP
Jonathan M. Jacobson, Partner, Wilson, Sonsini, Goodrich & Rosati
Joseph Kattan, Partner, Gibson, Dunn & Crutcher LLP
Steven C. Salop, Professor of Law, Georgetown University Law Center

Moderator
Renata Hesse, Deputy Assistant Attorney General for Civil Enforcement, Antitrust    Division, U.S. Department of Justice

Directions to the FTC’s Conference Center are available here.

Reasonable accommodations for people with disabilities are available upon request. Requests should be submitted via email to skonstandt@ftc.gov or by calling Samantha Konstandt at 202-326-3348. Requests should be made in advance. Please include a detailed description of the accommodation needed, and provide contact information.

The FTC's Bureau of Competition works with the Bureau of Economics to investigate alleged anticompetitive business practices and, when appropriate, recommends that the Commission take law enforcement action. To inform the Bureau about particular business practices, call 202-326-3300, send an e-mail to antitrust@ftc.gov, or write to the Office of Policy and Coordination, Bureau of Competition, Federal Trade Commission, 601 New Jersey Ave., Room 7117, Washington, DC 20580. To learn more about the Bureau of Competition, read Competition Counts. Like the FTC on Facebook, follow us on Twitter, and subscribe to press releases for the latest FTC news and resources.

Contact Information

MEDIA CONTACT:

Peter Kaplan
Federal Trade Commission
Office of Public Affairs
202-326-2334

Gina Talamona
Department of Justice
Office of Public Affairs
202-514-2007