Online RPM and MFN Under Antitrust Law and Economics

32 Pages Posted: 18 Oct 2016 Last revised: 4 Jan 2017

Pinar Akman

School of Law, University of Leeds

D. Daniel Sokol

University of Florida - Levin College of Law; George Washington University Law School Competition Law Center

Date Written: December 1, 2016

Abstract

Depending on the legal framing, behavior that might in some circumstances resemble online resale price maintenance (RPM) agreements in other circumstances may instead resemble online most favored nation (MFN) agreements. Together, the cases that involve online RPM and MFN can be viewed as a natural experiment of how antitrust economics and law can adapt to an online world. Thus far, enforcement across jurisdictions has been based on economic theories that do not always match up with legal doctrine. Doctrinal confusion can thwart business practices that may be efficient.

This paper makes a number of contributions. We distinguish issues of online RPM from traditional RPM and online RPM from online MFN. Then, we apply the economic learning on RPM and analyze the antitrust cases of online RPM and MFN to date across the United States, Europe and Australia. The last part of this paper offers policy recommendations that reduce the confusion in current legal doctrine.

Keywords: resale price maintenance, most favored nation, RPM, MFN, antitrust, competition law, economics

JEL Classification: K21, L42, L11

Suggested Citation

Akman, Pinar and Sokol, D. Daniel, Online RPM and MFN Under Antitrust Law and Economics (December 1, 2016). Review of Industrial Organization, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2852782 or http://dx.doi.org/10.2139/ssrn.2852782

Pinar Akman

School of Law, University of Leeds ( email )

Leeds, LS2 9JT
United Kingdom

D. Daniel Sokol (Contact Author)

University of Florida - Levin College of Law ( email )

Spessard L. Holland Law Center
P.O. Box 117625
Gainesville, FL 32611-7625
United States
(352) 273-0968 (Phone)
(352) 392-3005 (Fax)

HOME PAGE: http://www.law.ufl.edu/faculty/d-daniel-sokol

George Washington University Law School Competition Law Center ( email )

200 H Street, NW
Washington, DC 20052
United States

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