What is the Potential Fallout from FTC’s Decision to Investigate Big Tech?
What is the Potential Fallout from FTC’s Decision to Investigate Big Tech?
The Federal Trade Commission (FTC) issued a press release announcing that the agency will examine prior acquisitions by large technology companies between the years of January 1, 2010-December 31, 2019. With a 5-0 vote, the Commission seeks to examine subsequent trends of large cap acquisition on smaller firms to determine whether competition was restricted or whether competitive concerns should have been raised.
“The Federal Trade Commission issued Special Orders to five large technology firms, requiring them to provide information about prior acquisitions not reported to the antitrust agencies under the Hart-Scott-Rodino (HSR) Act. The orders require Alphabet Inc. (including Google), Amazon.com, Inc., Apple Inc., Facebook, Inc., and Microsoft Corp. to provide information and documents on the terms, scope, structure, and purpose of transactions that each company consummated between Jan. 1, 2010 and Dec. 31, 2019.
The Commission issued these orders under Section 6(b) of the FTC Act, which authorizes the Commission to conduct wide-ranging studies that do not have a specific law enforcement purpose. The orders will help the FTC deepen its understanding of large technology firms’ acquisition activity, including how these firms report their transactions to the federal antitrust agencies, and whether large tech companies are making potentially anticompetitive acquisitions of nascent or potential competitors that fall below HSR filing thresholds and therefore do not need to be reported to the antitrust agencies.”
What specifically is the FTC looking for?
“The Special Orders require each recipient to identify acquisitions that were not reported to the FTC and the U.S. Department of Justice under the HSR Act, and to provide information similar to that requested on the HSR notification and report form. The orders also require companies to provide information and documents on their corporate acquisition strategies, voting and board appointment agreements, agreements to hire key personnel from other companies, and post-employment covenants not to compete. Last, the orders ask for information related to post-acquisition product development and pricing, including whether and how acquired assets were integrated and how acquired data has been treated.”
What are the options for the FTC under this action?
With this review being operated by the agency’s Office of Policy Planning under Section 6(b) of the FTC Act the review could trigger an enforcement action but that this inquiry would not be able to share information with the Department of Justice unless there is an enforcement action.
So what does this mean?
The FTC has significant power to scrutinize mergers and stop them. In this case, the FTC’s aim is to examine how big tech became big tech? The answer is simple, not only did they innovate to create go to products, but these large companies like Amazon, Facebook, Alphabet, Microsoft and Apple grew through acquisitions. Determining whether to incorporate competition or “kill” acquired companies has heavily contributed to their success. While the FTC does have power to make problems for these companies, the fact that the agency’s scrutiny could go on for years poses the question of whether the FTC has enough resources to make any meaningful differences. Additionally, will these same scrutinized big tech companies provide a marketplace solution themselves by divesting certain businesses before policymakers require them to do so.
This may be different for tech companies that aren’t large cap tech. Knowing what the competitive playing field is along with how regulators are overseeing this market is crucial to your success. Contact Lanton Law to learn about your options to put together a solid strategy to reach your goals.
For more information contact
Ron Lanton III, Esq.
Principal
Lanton Law
rlanton@lantonlaw.com
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