Department of Justice, Federal Trade Commission to Hold Workshop on “Most-Favored-Nation” Clauses

WASHINGTON – The Department of Justice and the Federal Trade Commission (FTC) 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 Department of Justice and the FTC 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 to ATR.LPS-MFNPublicWorkshop@usdoj.gov.  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 sending an email to ATR.LPS-MFNWorkshopRSVP@usdoj.gov. Please include “RSVP” in the subject line.  Seating will be on a first-come, first-serve 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

Robert Majure, Economics Director of Enforcement, Antitrust Division, U.S. Department of Justice

Daniel O’Brien, Senior Economic Policy Advisor, Federal Trade Commission

 

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

Robert Majure, Economics Director of Enforcement, Antitrust Division, U.S. Department of Justice

Daniel O’Brien, Senior Economic Policy Advisor, Federal Trade Commission

 

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 Speech: Nelson 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

Murray N. Ross, Ph.D., Vice President & Director, Institute of Health Policy, Kaiser Permanente

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.

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 at http://www.ftc.gov/bcp/workshops/transportationguide.shtml.

 

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.

 

Press contacts:

 

Department of Justice  

Office of Public Affairs  

Gina Talamona  

202-514-2007  

 

 

Federal Trade Commission

Office of Public Affairs

Peter Kaplan

202-326-2334