The Antitrust Agencies’ Latest Favorite Target: MFN Clauses Highlights from the Joint DOJ-FTC MFN Workshop

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On September 10, 2012, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) hosted a public workshop exploring the uses of most-favored-nation clauses (MFNs) and their implications for antitrust enforcement policy. The workshop provided a forum for lawyers, economists, academics, and businesspeople to discuss the legal and economic analyses of MFNs, as well as an opportunity to help inform future treatment of

MFNs by the antitrust agencies. Recent agency actions, speeches, and this workshop may signal a reinvigorated focus on MFN clauses by the DOJ and FTC. In fact, in a March 2012 speech, then-acting Assistant Attorney General for the DOJ’s Antitrust Division, Sharis Pozen, stated that the DOJ has “combined [its] MFN expertise with the states’ knowledge of local market conditions to open investigations of various MFN clauses in a number of markets.” MFN provisions, also referred to as “most favored customer” or “antidiscrimination” clauses, are most commonly included in contracts across a wide range of industries to guarantee a customer that it will receive prices that are at least as favorable as those provided to other customers of the same seller.

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