Revisiting Guidance on MFN Terms

By Bob Majure & Andrew Sfekas

In 2012, Deputy Assistant Attorney General Fiona Scott-Morton gave a speech that cautioned against “contracts that reference rivals,” including most-favored nation clauses (“MFNs”) and some forms of volume discounts because of their enhanced risk of raising antitrust concerns. That risk was pointedly illustrated by a series of cases brought by the Antitrust Division at this time that featured MFNs. There are some appropriate rules of thumb for when MFNs