Back in September 2012, the potential anticompetitive aspects of most favored nation (MFN) clauses was the hot antitrust topic.  While antitrust counselors (and courts) had found the clauses to be innocuous almost all the time, government officials made speeches and even held a workshop in front of an overflow crowd to discuss theories about when…

The Federal Trade Commission is meant to be, and is, an expert body on antitrust laws.  So, when a case like McWane—that raises both collusion and exclusion issues—is in front of the FTC, it seems reasonable to expect to receive guidance that is more helpful than we might get from a jury or generalist judge…

Say you built a better mousetrap, the world beat a path to your door and now you have a high share of the mousetrap market.  Let’s further assume that your customers find “the cost of switching [to another mousetrap] prohibitive” through no actions of yours.  What else must you do to be accused of entering…

Effective December 16, 2013, Hart-Scott-Rodino (HSR) coverage of exclusive licenses of patents will change. As HSR practitioners know well, the Federal Trade Commission’s Premerger Notification Office (PNO) has long-interpreted HSR to cover exclusive licenses as a reportable acquisition (assuming all other requirements are met) if the licensor did not retain any rights to “make, use…