Antitrust Enforcers’ Fourth and Final “Listening Forum” On Merger Reform Highlights Issues In Technology

In March of this 12 months, the Antitrust Division of the U.S. Division of Justice (“DOJ”) and the Federal Commerce Fee (“FTC”) collectively introduced a collection of “listening forums” that may assist collect actual world enter from members in key business segments on potential reforms to the antitrust rules pertaining to mergers and acquisitions.1 Co-led by DOJ Assistant Legal professional Basic (“AAG”) Jonathan Kanter and FTC Chairperson Lina Khan, the fourth and last introduced discussion board, specializing in know-how, was held on Could 12, 2022.2 In addition to AAG Kanter and Chairperson Khan, this system included eight panelists that offered views from restaurant house owners, privateness advocates, software program start-up entrepreneurs, enterprise capitalists, podcasters, booksellers, small enterprise house owners, and union employees.3

AAG Kanter started the session by noting that greater than 5,000 feedback had been acquired by the shut of the merger tips remark interval and that the listening boards have been an essential a part of the enter course of. Kanter went on to acknowledge that “[t]here is perhaps no more consequential topic in antitrust enforcement today than digital markets.” He famous that competitors coverage should adapt to new applied sciences and realities and that enforcement is a key piece of this coverage. The federal government, in response to Kanter, should promote innovation and in flip competitors. 

The panelists expressed a variety of issues within the business, corresponding to supply apps and ghost kitchens and their respective impacts on the restaurant enterprise, pupil information privateness, monopoly energy within the tech business and the affect on tech start-ups, together with investing in tech start-ups, media collusion, challenges of small brick and mortar shops with e-commerce, and the continuing pressures within the labor market. 

Chair Khan offered closing remarks by noting an “imbalance in power between platforms and the businesses that depend on them [that] enable[s] potentially harmful business practices,” which she analogized to “tenant farming.” Khan reiterated what she has been stating for fairly a while in that she would love the FTC to “make sure that [the analytic] tools are up to the challenge” of assessing anti-competitive practices in new and novel markets, together with however not restricted to digital markets. 

After some extra feedback from AAG Kanter relating to the data offered by the panelists, different public feedback (greater than the opposite classes) had been provided, which offered extra, wide-ranging opinions. One commentator famous {that a} aim for a lot of start-ups is to get acquired by bigger corporations in order that entrepreneurs can use that capital to proceed to innovate, and so the businesses should be conscious of that technique when taking a look at merger reform. Others famous the hazards of bigoted messaging and enterprise practices on platforms in addition to the disparate affect of unfair enterprise conduct on minorities. Others famous how consolidation in know-how adversely impacts competitors in different industries, corresponding to digital medical data and healthcare. And but there was one commentator who indicated that the present merger tips are adequate in assessing tech mergers and acquisitions.

With the top of the Listening Discussion board and the remark interval for the horizontal merger tips, the following step is to see what the Companies suggest for the draft revisions. There was quite a lot of dialogue of serious, substantive modifications to the rules as a result of the FTC and DOJ are each prepared to check their enforcement mandate from the Biden Administration on this sector and others.


FOOTNOTES

1 “Forums to focus on markets commonly impacted by mergers: food and agriculture, health care, media and entertainment, and technology,” March 17, 2022, out there at: https:// www.ftc.gov/news-events/news/press-releases/2022/03/ftc-justice-department-launch-listening-forums-firsthand-effects-mergers-acquisitions

2 See “Antitrust Enforcers’ First ‘Listening Forum’ On Merger Reform Highlights Ongoing Concerns in the Food and Agriculture Industry” Could 10, 2022, “Antitrust Enforcers’ Second ‘Listening Forum’ On Merger Reform Highlights Ongoing Concerns in the Healthcare Industry,” and “Antitrust Enforcers’ Third ‘Listening Forum’ On Merger Reform Highlights Ongoing Concerns in Media and Entertainment” out there at: https://www.polsinelli.com/intelligence/ antitrust-forum-highlights-concerns-in-food-and-ag and https://www.polsinelli.com/intelligence/ antitrust-forum-highlights-healthcare-industry and https://www.polsinelli.com/intelligence/antitrust-forum-highlights-media-entertainment

3 Transcript out there at: https://www.ftc.gov/system/files/ftc_gov/pdf/FTC%20and%20 Justice%20Department%20Listening%20Forum%20on%20Firsthand%20Effects%20of%20 Mergers%20and%20Acquisitions-%20Technology%20-%20May%2012%2C%202022_0.pdf

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