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
Source: US Department of Justice
