Public Workshop: Most-Favored-Nation Clauses and Antitrust Enforcement and Policy

Date:

Monday, September 10, 2012 (9:00am to 5:00pm eastern)

Location:

FTC Satellite Building and Conference Center
601 New Jersey Avenue NW
Washington, DC 20001
United States

Event Details

Workshop Information

On September 10, 2012, the Antitrust Division of the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) held a joint public workshop on most-favored-nation clauses (MFNs). The workshop provided a forum for discussion of the evolution of economic and legal thinking on MFNs and their implications. The workshop featured panels discussing economic theories concerning MFNs and why they are used, the legal treatment of MFNs, and industry experiences with MFNs, among other topics.

For more information, contact the Antitrust Division’s Competition Policy and Advocacy Section at ATR.LPS-MFNPublicWorkshop@usdoj.gov.

Press release: Department of Justice, Federal Trade Commission to Hold Workshop on “Most-Favored-Nation” Clauses (August 17, 2012)

Date and Location

September 10, 2012

Federal Trade Commission
Satellite Building and Conference Center
601 New Jersey Avenue NW
Washington, DC 20001

Workshop Agenda

September 10, 2012
9:00–9:05 a.m.	Welcome and Introduction
9:05–10:15 a.m.	Economic Theories of MFNs: Harms and Efficiencies *Presenters* Jonathan Baker, Professor of Law, American University Washington College of Law Presentation: Competitive Harm from MFNs: Economic Theories Judith A. Chevalier, William S. Beinecke Professor of Finance and Economics, Yale School of Management Presentation: Efficiencies from MFNs: Economic Theories DOJ Moderator: Robert Majure, Economics Director of Enforcement, Antitrust Division, U.S. Department of Justice FTC Moderator: Leemore Dafny, Deputy Director for Healthcare and Antitrust, Bureau of Economics, Federal Trade Commission
10:15–10:35 a.m.	Empirical Evidence on Effects of MFNs *Presenter* Ramsey Shehadeh, Senior Vice President, NERA Economic Consulting Presentation: Empirical Evidence on the Effects of MFNs DOJ Moderator: Robert Majure, Economics Director of Enforcement, Antitrust Division, U.S. Department of Justice FTC Moderator: Leemore Dafny, Deputy Director for Healthcare and Antitrust, Bureau of Economics, Federal Trade Commission
10:35–10:55 a.m.	Panel Discussion on the Economics of MFNs *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 Shehadeh, Senior Vice President, NERA Economic Consulting DOJ Moderator: Robert Majure, Economics Director of Enforcement, Antitrust Division, U.S. Department of Justice FTC Moderator: Leemore Dafny, Deputy Director for Healthcare and Antitrust, Bureau of Economics, Federal Trade Commission
10:55–11:15 a.m.	Break
11:15 a.m.–12:25 p.m.	Legal Treatment of MFNs *Panel* Doug Anderson, Of Counsel, Bailey Cavalieri LLC Andrew I. Gavil, Incoming Director, Office of Policy Planning, Federal Trade Commission Presentation: Legal Framework for Evaluating MFNs Under the Antitrust Laws Elai Katz, Partner, Cahill Gordon & Reindel LLP Janet L. McDavid, Partner, Hogan Lovells FTC Moderator: Peter J. Levitas, Deputy Director, Bureau of Competition, Federal Trade Commission
12:25–2:00 p.m.	Lunch/Speech *Speaker* Nelson Jung, Director, Markets and Projects, U.K. Office of Fair Trading Presentation: Price relationship agreements in the UK and EU: a retail-MFN enforcement gap?
2:00–3:00 p.m.	From Theory to the Real World *Panel* W. Thomas McGough Jr., Senior Vice President & Chief Legal Officer, University of Pittsburgh Medical Center Presentation: Most-Favored-Nation Arrangements in Health Care Murray N. Ross, Ph.D., Vice President & Director, Institute of Health Policy, Kaiser Permanente Presentation: “Most Favored Nation” Clauses in Health Care Melissa A. Scanlan, Director, Legal Affairs, T-Mobile USA, Inc. Presentation: Most-Favored-Nation Clauses “Real World” Benefits and Challenges John Thorne, Partner, Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC Presentation: “Real World” Panel on MFNs Mark D. Whitener, Senior Counsel, General Electric Co. Presentation: MFN Provisions and Antitrust Policy Moderator: Martha S. Samuelson, President & CEO, Analysis Group Inc.
3:00–3:15 p.m.	Break
3:15–5:00 p.m.	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 Economics and Law, Georgetown University Law Center Presentation: Developing Administrable MFN Enforcement Policy DOJ Moderator: Renata Hesse, Deputy Assistant Attorney General for Civil Enforcement, Antitrust Division, U.S. Department of Justice
5:00–5:05 p.m.	Closing Remarks

The views expressed at the workshop do not necessarily reflect those of the U.S. Department of Justice or the Federal Trade Commission.

Public Comments

The Department of Justice and the FTC welcomed written comments from the public both before and after the workshop. The deadline for submitting public comments was October 10, 2012. The comment period is now closed.

MFNW-0001 Jacobson, Jonathan M.

MFNW-0002 National Alliance of State Health Co-ops

MFNW-0003 Alliance of Automotive Service Providers of Minnesota

Privacy and confidentiality: Written submissions and the identity of the submitter may be disclosed, reproduced, and distributed by publication and/or posting on the Department of Justice website, at the discretion of the Department of Justice. Information that is submitted in connection with this event cannot be maintained as confidential by the Department of Justice. Written submissions should not include any information that the submitting person seeks to preserve as private or confidential.

Updated June 8, 2023

Topic

Antitrust