Recent actions by the U.S. Department of Justice's Antitrust Division involving "most favored nation" provisions (MFNs) include:

  • This month it was widely reported that the Antitrust Division is currently investigating alleged anticompetitive practices in the cable industry, including whether cable companies are using MFNs in agreements with television networks to quash competition from online rivals.
  • In April 2012, the Antitrust Division filed suit against Apple and five publishers alleging in part that agency agreements between the publishers and Apple contained retail price matching MFNs "designed to protect Apple from having to compete on price at all."
  • In October 2010, the Antitrust Division filed suit against Blue Cross Blue Shield of Michigan alleging that MFNs in the health insurance provider's agreements with hospitals raised hospital costs to competitors and "limit[ed] the ability of other health insurers to compete with Blue Cross by raising barriers to entry and expansion, discouraging entry, likely raising the price of commercial health insurance, and preserving Blue Cross' leading market position."
     

These actions continue to reinforce the importance of exercising caution when drafting MFNs. The Antitrust Division has stated that MFNs and other contract provisions that reference rivals "deserve additional scrutiny" because they "may create a competitive problem unless the provision serves a particular pro-competitive purpose."