For this edition of the CPI Antitrust Chronicle, we turn our focus to the antitrust treatment of MFN clauses, loyalty programs, and fidelity rebates.
All three types of practices are “classics” in the antitrust canon, but the advent of digital platforms has raised novel questions.
To take just a few: When are MFN clauses efficient? Should MFNs be permissible for dominant platforms? Should MFNs be limited in scope depending on the industry at hand or a business’ market power? Are new safe harbor provisions warranted? How should MFNs be viewed when used in combination with loyalty or rebate programs?
As ever, in such a fast-moving environment, these questions have produced divergent approaches from enforcers and courts. In the meantime, businesses must continue to adapt their practices while complying with competition rules in a state of flux.
We have assembled a timely group of articles from a diverse range of authors that assess these practices in light of recent developments around the world. Each article makes a valuable contribution to the lively debate on how both enforcers and practitioners can approach these questions in a rapidly evolving enforcement environment.
Lastly, please take the opportunity to visit the CPI website and listen to our selection of Chronicle articles in audio form from such esteemed authors as Maureen Ohlhausen, Herbert Hovenkamp, Richard Gilbert, Nicholas Banasevic, Randal Picker, Giorgio Monti, Alison Jones, and William Kovacic among others. This is a convenient way for our readers to keep up with our recent and past articles on the go, in the gym, or at the beach.
As always, thank you to our great panel of authors.