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The legal treatment of MFN clauses may differ depending on several factors, as shown below. The identity of the contracting parties: For example, the future EU Digital Markets Act will prohibit broad and narrow MFN clauses for certain services by designated gatekeepers. Limited competition among home insurers more generally.
The CMA found that because the 32 insurers competed less on price, other providers were subject to less competitive pressure, and retail price competition among all insurers competing on PCWs was reduced. The CMA found that narrow MFN clauses prevented insurers from profiting from investments made by PCWs in their own websites and services, because they prevented insurers from undercutting the prices displayed on PCWs where a large number of customers would see offers on their own websites.
The mere fact that the CMA had shown that the extended MFN clauses were contractually respected was not sufficient for this purpose. In particular, the CAT found that the CMA had not sufficiently taken into account the fact that MFN clauses could have pro-competitive or at least neutral effects on the incentive of home insurers to reduce commissions, promotional discounts or home insurance products themselves.
The CAT noted that the broad MFN clauses only limited the price at which home insurers could offer their products through PCWs — they did not restrict competition on the level of premiums — and criticized the CMA for not taking this into account in his analysis. The CAT found that this was not necessarily the case in practice. The CAT found that broad MFN clauses could lead to a number of different results, not all of which were anti-competitive.
When I first got into the industry 30 years ago and saw this language, I remember thinking that the tenants that had the language in the lease were the laziest leasing agents around. I will agree to this, but if someone was better than me and negotiated a better deal. I get that. I will agree to this, but if someone was better than me and negotiated a better deal, I get that. It is so dreaded for many reasons, but the most obvious are the amount of administration it takes to properly bill a tenant and the financial implications.
Imagine, you have finished the final review of the year end settlements of CAM or taxes and are ready to post the billings. Now, imagine that tenant was an excluded area for other tenants in the center. Now, take it a step further. You have a struggling tenant. You agree to put that tenant on a percentage in lieu of minimum rent and all other charges.
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