Antitrust Challenges to Most Favored Nation and Competitor Parity Clauses in the U.S. and Europe

MFN and competitor parity provisions have recently faced regulatory challenges in both the U.S. and Europe. These challenges, brought by competition authorities in EU Member States and by the European Commission against online travel agencies and Amazon and brought by the DOJ against American Express, were made despite the lack of market power by the benefiting parties and no harm to consumers.

Do these challenges mean that MFNs and parity provisions are unlawful in all circumstances? Or, do the circumstances in which parity provisions are used create particular antitrust exposure? Can MFNs and competitor parity provisions still be used when there is a defensible business case for them? How can the clauses be tailored so that they withstand antitrust scrutiny?

Listen as our authoritative panel provides practical thinking on the use or contemplated use of MFNs and competitor parity provisions in the U.S. and Europe. The panel will highlight factors that might create antitrust concern and identify techniques that could help counsel and clients avoid problems.

1. What is an MFN/competitor parity clause?
2. Latest legal developments regarding the use of MFN and competitor parity clauses
3. Circumstances under which MFN and competitor parity clauses may face heightened antitrust risk
4. Defensible business case for an MFN
5. Tailored use of MFNs

The panel will review these and other key issues:

• What were the circumstances behind the recent regulatory challenges to MFN and competitor parity provisions in the U.S. and Europe?
• Are there particular characteristics of some industries or market structures that make MFN and parity provisions more or less of a problem?
• Do some companies face greater risks than others in using MFN and parity provisions?
• How can companies demonstrate a defensible business case for MFN and parity provisions?